Wright v. State, 98-2326.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BROWNING, J.
• Citation: 739 So.2d 1230
• Parties: Kenneth WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 98-2326.,98-2326.
• Decision Date: 10 August 1999

739 So.2d 1230

Kenneth WRIGHT, Appellant,
v.
STATE of Florida, Appellee

No. 98-2326.

District Court of Appeal of Florida, First District.

August 10, 1999.

739 So.2d 1231

Nancy A. Daniels, Public Defender; W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant

Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

The State's amended information alleged that the appellant, Kenneth Wright (Wright), committed sexual battery upon S.J., a person 12 years of age or older, by coercing the victim to submit by threatening to use force or violence likely to cause her serious personal injury, and by placing his penis in or on the victim's vagina, in violation of section 794.011(4), Florida Statutes (1997) (Count One); and that Wright, being a person 24 years of age or older, engaged in sexual activity with the same victim, S.J., a person 16 or 17 years of age,¹ by placing his penis in or upon the victim's vagina, in violation of section 794.05(1), Florida Statutes (1997) (Count Two). A jury found Wright not guilty in the first count and guilty, as charged, in the second count. Wright was sentenced to 69 months in prison, to be followed by 2 years on probation. Wright asserts as error the trial court's rulings 1) denying the motion to dismiss Count Two on constitutional grounds, 2) denying the motion to sever the two counts, and 3) including "victim injury" points on the sentencing guidelines scoresheet for "sex penetration" despite the absence in the record of any indication that the jury based its verdict in Count Two on a finding of penetration. Finding no merit to the first two claims, we affirm Wright's conviction. However, we vacate the sentence and remand for resentencing based on a corrected scoresheet. May v. State, 721 So.2d 741 (Fla. 5th DCA 1998), rev. den., 729 So.2d 394 (Fla.1999).

Constitutional Challenge

The defense moved to dismiss Count Two on the grounds that section 794.05, Florida Statutes (1997), which makes it a second-degree felony for a person 24 years of age or older to engage in "sexual activity" with a person 16 or 17 years old, is unconstitutional in violation of equal protection and the right to privacy.² At the outset, we note that statutes are presumed to be constitutional, and all reasonable doubts regarding the validity of a statute are to be resolved in favor of constitutionality. State v. Kinner, 398 So.2d 1360 (Fla.1981); Gammon v. Cobb, 335 So.2d 261 (Fla.1976). Accordingly, a defendant who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity. Milliken v. State, 131 So.2d 889 (Fla.1961).

739 So.2d 1232

Our sister court recently addressed similar constitutional challenges to the same version of section 794.05 in State v. Walborn, 729 So.2d 504 (Fla. 2d DCA 1999). After she was charged with unlawful sexual activity with a minor, Ms. Walborn moved to dismiss the information and to declare the statute unconstitutional in violation of her right to privacy and of her federal and state rights to equal protection. Although it found no violation of Walborn's right to privacy, the trial court found that the statute did violate her right to equal protection, and the information was dismissed. The basis of the trial court's ruling was that if no meaningful differences exist between a 23-year-old and a 24-year-old who engage in sexual activity with a person 16 or 17 years of age, then the statute's age classification is unreasonable and arbitrary. The State appealed the dismissal of the information, and Walborn cross-appealed on the ground that the trial court also should have found the statute to be unconstitutional as a violation of her right to privacy. Id. at 504-05

Age limitations and restrictions may survive a constitutional challenge and be enforced if they pass the "rational basis" test, i.e., the age classifications are reasonably related to a permissible governmental objective. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); White Egret Condominium v. Franklin, 379 So.2d 346 (Fla.1979); Rollins v. State, 354 So.2d 61 (Fla.1978); D.P. v. State, 705 So.2d 593, 597 (Fla. 3d DCA 1997). The Second District Court found the following justification for the age restriction:

In regards to section 794.05, the legislature decided to limit criminal responsibility to persons twenty-four years of age and over because the legislature felt that persons in this group were more likely than others to understand the consequences of their actions and to cause harm to minors who cannot appreciate the seriousness of their activities. Therefore, the age limitation in section 794.05 is not arbitrary when balanced against the goals of protecting minors from sexual exploitation. Accordingly, we will not substitute our judgment for that of the legislature. We, therefore, find that the statute is reasonably related to the goal of protecting minors from sexual exploitation by adults and its age restriction is constitutional.

Walborn, 729 So.2d at 506. Any statute that intrudes upon a protected zone of privacy must demonstrate a compelling State interest and must overcome the "stringent test" announced in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985), to meet constitutional standards. B.B. v. State, 659 So.2d 256 (Fla.1995). Applying this test to the statute, the district court in Walborn affirmed the point on cross-appeal in reliance upon State v. Cunningham, 712 So.2d 1221, 1225 (Fla. 2d DCA), rev. den., 728 So.2d 201 (Fla.1998), in which the district court had specifically found that as the statute "furthers a compelling State interest in protecting minors from harmful sexual conduct and...